Torras v. Stradley
| Decision Date | 21 April 1952 |
| Docket Number | No. 76 Motions.,76 Motions. |
| Parties | TORRAS v. STRADLEY. |
| Court | U.S. District Court — Northern District of Georgia |
G. Seals Aiken, Atlanta, Ga., for movant, Mrs. Torras.
J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., Atlanta, Ga., Joseph L. Stradley, Atlanta, Ga., on the brief, for respondent.
This is an application on behalf of the Commissioner of Internal Revenue of the United States of America for an order enforcing a summons of a Special Agent of the Bureau of Internal Revenue, United States Treasury Department, issued and served under authority of Section 3614(a) of the Internal Revenue Code, 26 U.S.C.A. 3614(a), requiring a witness to give testimony in an income tax investigation.
In earlier proceedings the Government was the original movant. Counsel for the witness brought an action against the Special Agent alleging numerous violations of his client's constitutional rights and seeking to have the Special Agent enjoined "from calling, insulting, visiting, threatening, harrassing, assaulting, and/or molesting" the witness. Upon a hearing it was found that the allegations were not supported by the evidence and that the Special Agent had not been guilty of improper conduct toward the witness.
The witness whose testimony is being sought is the bookkeeper, secretary, and dental assistant for a dentist whose tax liability is under investigation. The taxpayer's brother is counsel for both the taxpayer and the witness.
Following the prior judgment, the witness appeared before the Special Agent in response to an order of this Court. She was accompanied at said appearance by the taxpayer's counsel and a private stenographer or reporter employed by said counsel. A stalemate developed when the attorney and his stenographer were excluded from the proceeding and the attorney refused to permit the witness to testify unless he and his stenographer were admitted. The witness was offered a reasonable time in which to secure counsel of her own choosing not retained by, or connected with, the taxpayer.
The present application was made in the form of an amendment to the original motion. It seeks an order to compel the witness to testify without the presence of a personal stenographer or reporter and without counsel retained by or connected with the taxpayer. It also asks that the attorney, his stenographer, and the witness be required to show cause why they should not be adjudged in contempt of court, and that the taxpayer be required to show cause "why he should not be restrained and enjoined, whether by himself, his attorney, or anyone else engaged by him, from interfering further in the Government's obtaining" the witness' testimony.
Counsel for the witness was given opportunity for the presentation of authorities in a lengthy oral argument. The Government's case was presented by brief.
The Government contends that the appearance of the taxpayer's counsel with the witness is for the purpose of suppressing her testimony, of apprising the taxpayer of the direction taken by the investigation, and of dominating the inquiry which is required to be a secret and confidential proceeding. It further contends that a witness' personal stenographer is not a person authorized to hear confidential information of a taxpayer's affairs and that his admission to the proceedings would, therefore, subject the Government's agent to prosecution under Section 55(f)(1) of the Internal Revenue Code, 26 U.S.C.A. § 55 (f)(1).
Counsel for the witness argues that the restrictions placed on his client are in violation of Amendment V of the United States Constitution in that they deprive her of "life, liberty, or property, without due process of law". He contends further that the Government's position places a too narrow construction upon Section 6(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(a). He insists that it is in direct conflict with the applicable and controlling decision in the case of Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. He also insists that the witness' right to select her own counsel is assured by the decision in the case of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. He relies heavily on the decision in the case of Jones v. Securities & Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, in denouncing the present inquiry.
Two questions thus presented are:
1. Does the right of a witness, given by the Administrative Procedure Act, "to be accompanied, represented, and advised by counsel" when subpoenaed to testify in an investigation before a Special Agent of the Bureau of Internal Revenue, include a right to the presence and advice of counsel connected with, or retained by, the taxpayer?
2. Does a witness, required to give testimony in an income tax investigation authorized by Section 3614(a) of the Internal Revenue Code, 26 U.S.C.A. § 3614(a), have a right to have his personal stenographer present to take notes of his testimony, even though a regular Government stenographer is present to record the testimony?
Both questions are answered in the negative.
It seems not at all unreasonable to exclude the taxpayer's counsel from the interrogation of a witness about the taxpayer's affairs. The witness' constitutional rights are amply protected so long as he can select counsel from all other attorneys. Under a contrary ruling it is easy to see that the Government's investigation might be seriously prejudiced. Indeed, in the instant case, the Government's agents have been put to much delay, trouble and expense by the actions of the taxpayer's attorney.
There is no merit in the contention of counsel for the taxpayer that his position is supported by the Wong Yang Sung decision. In the present case the rights concerned are those of a mere witness in a preliminary, fact-finding investigation in which no rights of parties are finally determined. In the Wong Yang Sung case, however, the rights of a person whose deportation had been recommended by the immigration authorities were involved. The court in that case dealt with provisions of the Administrative Procedure Act not involved in the present case and it denounced the practice of commingling in one person the duties of prosecutor and judge — a circumstance not involved here.
The Powell and Jones decisions, likewise, do not support the contentions for the witness. The person involved in the Powell case was not a mere witness in an investigatory proceeding; he was a defendant charged in open court with a felony. Under the constitution his right to counsel was clearly different from that of a witness before an agency of the...
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...1949). See also In re Mead Corp., No. 571-0656, FTC, Jan. 3, 1963, 13 Pike & Fischer, Admin.Law (2d) 117 (1963). Cf. Torras v. Stradley, 103 F.Supp. 737, 739 (N.D.Ga.1951). In context the statement in Hannah v. Larche, 363 U.S. 420, at 445, 80 S.Ct. 1502 at 1516, 4 L.Ed.2d 1307 (1960) that ......
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